From the court, prayer rules that won't work

5/18/2014

Mixing prayer and state always has been a messy, contentious business -- but last week it got even messier and more contentious.

In a close 5-4 decision, the U.S. Supreme Court upheld the constitutionality of prayers at legislative meetings, even when most prayers are prayed in the name of Jesus (Town of Greece v. Galloway).

Writing for the majority, Justice Anthony Kennedy reaffirmed the argument-from-history made by the court 30 years ago in Marsh v. Chambers: Because legislative prayer dates back to the founding, it must be constitutional.

Writing for the majority, Justice Anthony Kennedy reaffirmed the argument-from-history made by the court 30 years ago in Marsh v. Chambers: Because legislative prayer dates back to the founding, it must be constitutional.

Moreover -- and here's the new bit -- legislative prayers don't have to be nonsectarian to be constitutional since such a requirement "would force legislatures that sponsor prayers and the courts that are asked to decide such cases to act as supervisors and censors of religious speech."

According to the court, once the government "invites prayer into the public sphere, government must permit a prayer giver to address his or her own God ... as conscience dictates."

Before the ink was dry on the court's ruling, Al Bedrosian, a country supervisor in Roanoke, Va., announced plans to jettison the county's nonsectarian prayer policy and get back to the good old days of Christian prayers at every Board of Supervisors' meeting.

Asked by the Roanoke Times if non-Christians would be invited to prayer under a new policy, Bedrosian said that was unlikely since "the freedom of religion doesn't mean every religion has to be heard."

Supervisor Bedrosian needs to read the fine print.

Justice Kennedy, it turns out, lays out specific ground rules for legislative prayers: No proselytizing. No denigrating other faiths. And the government must have a non-discrimination policy when selecting people to pray.

In other words, free speech during prayer time isn't so free after all.

It's ironic Kennedy rejects requiring nonsectarian prayer in order to avoid government censorship of religious speech only to turn around and require pray rules that could lead to even greater government censorship of religious speech.

What possibly could be more entangling and confusing for government officials than trying to figure out when prayers cross the proselytizing line or come across as disparaging of other religions?

Messier still, how will local governments practice "non-discrimination" in the selection of prayer givers? Must the policy allow all comers -- or can the list be limited to certain groups? In communities with scores of religious congregations -- increasingly most American communities -- the "prayer giver" list will be long indeed.

Many minority religious groups as well as non-religious people already are planning to test the application of the new prayer regime by lining up to give invocations in cities and towns across the country.

Within days of the court's decision, for example, the American Humanist Association announced plans to offer humanists and atheists resources for offering secular invocations at legislative meetings. And in Florida, activist Chaz Stevens already has petitioned his local city commission and the state legislature to allow him to open one of their sessions with a Satanist prayer.

Far from resolving the fight about legislative prayer, the Supreme Court has opened the door for new conflicts and more litigation about who gets to pray and what they can say. That's bad for religion, bad for government and good only for lawyers.

If history is any guide, government sponsored prayers are a recipe for conflict and division. The only workable solution, in my view, is to get government out of the business of choosing prayer givers and monitoring the content of their prayers.

Perhaps the cacophony of controversial prayers at legislative meetings around the country soon will become so loud government officials will end the fight -- and adopt a moment of silence to solemnize their meetings.

Then, and only then, Justice Kennedy, will every citizen be free to pray (or not) "as conscience dictates."